San Jose – like many cities, indeed like many citizens of California – is confused about marijuana law. Gray areas are everywhere.

A group of police and city staff is drafting an ordinance to take out some of the gray and fill in some black and white defining city policy.

“We’re coming up with a city ordinance that we can live with and meet the needs of people who need marijuana,” said Police Capt. Laurence Ryan.

With medical marijuana dispensaries proliferating in the last year, San Jose is seeing more robberies, burglaries and fires targeting those facilities, said Deputy Police Chief Dave Hober.

And despite the unknowns of marijuana enforcement, the city has a series of Web pages devoted to medical marijuana policy as it contemplates a comprehensive city law and implements a tax on collectives passed in December 2010.

“The city tries to be very transparent about public outreach,” said Ryan.
See the city’s marijuana webpage here.

The Web pages have a certain let-it-all-hang-out approach with dozens of memos and letters regarding policy, surveys of the public and tax strategies.

There are recitations of how hard it would be to forecast revenue from a business receipts tax on marijuana businesses, “legal or illegal.” There are the complications of “the unknown approach the federal government will take regarding the legalization of recreational use of marijuana.” There’s a letter last summer from Planning, Building and Code Enforcement staff to 57 “collectives/dispensaries” telling them they were subject to enforcement because they were “within 500 feet of sensitive uses (such as schools)” or “outside the CG Commercial General Zoning District.”

Policy has taken some twists and turns. The federal Department of Justice in 2009 announced it would not enforce federal law on medical marijuana distribution facilities that conformed with California law. That has led to the proliferation of dispensaries around the state.

In 2010, many cities were preparing to draft regulatory ordinances on city as many anticipated the passage of California Proposition 19, a broader decriminalization measure. Oakland officials were even talking about encouraging – and taxing – large commercial pot-growing operations.

But 53.8 percent of California voters said no to Proposition 19 on Nov. 2, 2010. Oakland’s pot revenue-generating ambitions were tempered. And the law was anything but settled.

In the same election that California voters rejected broader decriminalization, San Jose voters approved Measure U authorizing the city to impose a tax on the gross receipts of businesses that sell marijuana. The San Jose City Council followed up in December and passed a tax of 7 percent on gross receipts.

As of Dec. 13, 2010, San Jose had 102 dispensaries, Ryan said. He estimated there were 20 dispensaries a year before that.

Now city staffers are working on an ordinance to regulate dispensaries. The city will distinguish policy for collectives, where people pool money to grow pot for authorized medical marijuana and later divide up the harvest, and “dispensaries” that “generally involve the sale of marijuana,” according to the Frequently Asked Questions page on the city’s Web site.

The ordinance should have language that prohibits authorized outlets from operating at a “profit,” Ryan said.

Also, police said, the ordinance will set minimum levels of security for collectives. Security varies widely for the dispensaries in San Jose, Hober said. Ordinance drafters will look at the question of whether to require security cameras.

Fires are prevalent at dispensaries and grow operations where operators sometimes tamper with utility boxes for expensive lighting systems. When operators jimmy with electrical boxes and steal power, they are usually committing a felony (if the theft exceeds $950), Ryan said.

Police last summer identified a suspect who was robbing banks in order to pay utility bills of $6,000 to $8,000 a month to finance his Santa Cruz pot-growing operation, Ryan said.

San Jose police tallied four burglaries or attempted burglaries at marijuana dispensaries in December 2010. The Herb Appeal dispensary on Drake Street had a burglary attempt from a criminal with a pry bar on Jan. 9 and, three days later, a fire, according to a San Jose police summary. Arson investigators responded to that call.

Another police summary had this cautionary tale: Last May 20, four heavily armed suspects entered the business (a dispensary in the 300 block of Commercial Street), tied up the staff and robbed them of personal effects. They also stole marijuana and cash from the business. San Jose detectives tracked the crews to Yuma, Ariz. – “the suspects stated they traveled to San Jose from Arizona to do the robbery because they knew San Jose had marijuana dispensaries and the quality of marijuana at the dispensaries is of the highest.”